“Militia”: What are They?

“Militia”: What are They?

“Militia”: What are They?

To understand the Constitution with respect to the Militia (and everything else it contains, for that matter), Americans must focus on what the Constitution’s key terms actually meant in the late 1700s—and what they continue to mean today, there having been no Amendments on that score in the intervening years. The original Constitution and the Bill of Rights, however, did not define “the Militia of the several States”, (footnote 1) “[a] well regulated Militia” and “the right of the people to keep and bear Arms”, (footnote 2) or what it means “[t]o provide for organizing, arming, and disciplining, the Militia” (footnote 3) or “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia”.(footnote 4) They did not have to, because their original audience, WE THE PEOPLE in 1788 and 1791, knew precisely the import of those phrases.

Where did WE THE PEOPLE in the late 1700s find the definitions of “the Militia of the several States”, “[a] well regulated Militia”, “the right of the people to keep and bear Arms”, and “organizing, arming, and disciplining, the Militia” that they accepted as true and sufficient? Even before the idea of the Constitution entered anyone’s head, “the Militia of the several States” (or, earlier, the Militia of the several American Colonies, with the partial, peculiar, and in any event not permanent exception of Pennsylvania (footnote 5) were established and maintained pursuant to statutes enacted throughout the 1600s and 1700s. In those Colonies and then all of the independent States, operations aimed at organizing, arming, and disciplining these Militia were conducted pursuant to these statutes. In those Colonies and States, the vast majority of the able-bodied adult free male inhabitants (other than conscientious objectors) personally possessed firearms, because those statutes imposed upon them a duty to keep and bear arms. And as a consequence of all this, throughout America in the pre-constitutional era existed “well regulated Militia”—the products of statutes which Americans had believed were so effective in achieving their ends that they had enacted them and reënacted them and reënacted them yet again, in form and substance, decade after decade and generation after generation. (footnote 6)

WE THE PEOPLE understood the import the Militia Clauses in the Constitution and in the Bill of Rights too.

Vanishingly few among WE THE PEOPLE anywhere in America had any personal experience of the Federal Convention of 1787 (and none of them who happened to live in Rhode Island, because that State dispatched no delegates to Philadelphia). (footnote 1). Very few had any vicarious experience, either: For the proceedings were conducted in camera, with no contemporary reports in newspapers or other publications. And both the official Journal of the Convention, and private notes taken by various participants, were not published until many years later—James Madison’s now famous notes of the debates, for example, not coming to the public’s attention until 1840. (footnote 2) Similarly, very few among WE THE PEOPLE had any personal experience as delegates to the several States’ Conventions in 1787 and 1788. And THE PEOPLE’S vicarious experiences in that particular were limited to reports of the proceedings in newspapers, which were not entirely reliable. (footnote 3)

When THE PEOPLE incorporated “the Militia of the several States” into their new Constitution’s federal system, they knew full well that these were statutory institutions already in existence, separate in every State and each one the creature of its own State’s laws. When THE PEOPLE referred to “[a] well regulated Militia” in the Second Amendment, they knew exactly what the salient principles of “regulat[ion]” were, because those principles could be found, repeated again and again, in statute after statute the Colonies and then the independent States had enacted throughout the 1600s and 1700s. And when THE PEOPLE authorized Congress “[t]o provide for organizing, arming, and disciplining, the Militia”, they knew to the last detail what those activities entailed, because they were familiar with the “well regulated Militia” the Colonies’ and States’ statutes had produced in the past. (footnote 4)

3.) See J. Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ante note 110, Volume 1, at iii (PREFACE TO THE FIRST EDITION): “In the compilation, care has been taken to search into contemporary publications, in order to make the work as perfect as possible. Still, however, the Editor is sensible, from the daily experience of the newspaper reports of the present time, that the sentiments they contain may, in some instances, have been inaccurately taken down, and, in others, probably, too faintly sketched, fully to gratify the inquisitive politician * * * .” Exactly how, then, anyone could be sure (as the editor vouchsafed to his readers) that “the compilation” accurately “disclose[d] the opinions of many of the most distinguished revolutionary patriots and statesmen, * * * and certainly may form an excellent guide in expounding many doubtful points in th[e Constitution]”, the editor did not explain.

4.) Id. at 1, page 70.

Just as the noun ‘Legislature’ was not a term of uncertain meaning when adopted into the Constitution, neither was ‘the Militia of the several States’.

Just as the noun “Legislature” (footnote 1) “was not a term of uncertain meaning when incorporated into the [original] Constitution” and “[w]hat it meant when adopted it still means for the purpose of interpretation”, (footnote 2) so too the phrases “Militia of the several States”, “organizing, arming, and disciplining, the Militia”, “[a] well regulated Militia”, and “the right of the people to keep and bear Arms” were well understood by every adult American in the late 1700s—and, no Amendment of the Constitution having supervened thereafter, have not changed in their constitutional definitions since then.

And just as “[t]he definition of ‘a state’ is found in the powers possessed by the original states which adopted the Constitution” by studying the laws that evidenced those powers, (footnote 3) so too must the definitions of all those words and phrases that relate to the Militia in the Constitution (and in the Articles of Confederation, too) be found in the pre-constitutional American Colonial and State Militia statutes. (footnote 4)

WE THE PEOPLE in 1791 did not need to consult isolated statements from various Founders to define 'Militia'.

With their own States’ and their neighbors’ Militia statutes before them, WE THE PEOPLE in 1791 did not need to consult isolated statements of various Framers and Founding Fathers in order to ascertain with exactitude the defining constitutional principles of “[a] well regulated Militia”. Neither do WE THE PEOPLE today. On the one hand, if particular Framers’ or Founders’ interpretations, opinions, or reminiscences of or about the “Militia” contradict what the statutes mandated, they are useless for defining “[a] well regulated Militia”, because they are erroneous as a matter of law. On the other hand, if they confirm the statutes, they are merely derivative, cumulative, and ultimately superfluous evidence. In either event, the statutes, not any Framer’s or Founder’s personal conceptions of the “Militia”, must control. (footnote 1)

Footnotes:

Decades of disuse, misuse, and abuse have thoroughly muddled the meaning of 'Militia' today.

In one of the Supreme Court’s most important cases on the subject of unconstitutional paper currency, one Justice pointed out that,

[t]he terms, “bills of credit,” are in themselves vague and general, and, at the present day, almost dismissed from our language. It is, then, only by resorting to the nomenclature of the day of the Constitution, that we can hope to get at the idea which the framers * * * attached to it. (footnote 1)

Perhaps amazingly, this observation was offered a scant forty-two years after ratification of the Constitution, when men who had been young adults in 1788 were still alive and capable of remembering not only “the nomenclature of th[at] day” but also the actual “bills of credit”—such as the Continental Currency—which had then circulated throughout America. And, these possible witnesses aside, the pre-constitutional historical record more than adequately addressed the issue. (footnote 2)

If an actual problem with defining the well-understood term “bills of credit” supposedly arose so early in the life of the Constitution, then properly defining “the Militia of the several States”, “[a] well regulated Militia”, “the right of the people to keep and bear Arms”, and the power of Congress “[t]o provide for organizing, arming, and disciplining, the Militia” will require exquisitely meticulous care today. For decade upon decade of disuse, misuse, and abuse have so thoroughly muddled the meaning of “Militia” in contemporary American political discourse that the word is hardly ever encountered except as invective, usually well-freighted with vituperative adjectives such as “extremist” and “violent”, broadcast by the enemies of constitutional government (and their dupes and other “useful idiots”) for the purpose of intimidating into silence the people they intend to oppress as soon as the vast majority of Americans has been thoroughly disarmed through one form of “gun control” or another. (footnote 3)

WE THE PEOPLE not only incorporated directly into the original Constitution’s federal system the Militia that the statutes had regulated, (footnote 7) in every American Colony then Independent States for over 150 years, but also emphasized the constitutional authority and political indispensability of such statutorily “well regulated Militia” through the Second Amendment.

Just as “[t]he definition of ‘a state’ is found in the powers possessed by the original states which adopted the Constitution” by studying the laws that evidenced those powers, (footnote 8) so too must the definitions of all those words and phrases that relate to the Militia in the Constitution (and in the Articles of Confederation, too) be found in the pre-constitutional American Colonial and State Militia statutes, there being no other source of evidence. (footnote 9)

Footnotes

1.) U.S. Const. art. II, § 2, cl. 1.

2.) U.S. Const. amend. II.

3.) U.S. Const. art. I, § 8, cl. 16.

4.) Id.

5.) See The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., pages 87-88 and 845-848.